AS TO THE ADMISSIBILITY OF
by Franklin Edgar LANDVREUGD
against the Netherlands
The European Court of Human Rights (First Section), sitting on 6 June 2000 as a Chamber composed of
Mrs E. Palm, President,
Mrs W. Thomassen,
Mr L. Ferrari Bravo,
Mr C. Bîrsan,
Mr J. Casadevall,
Mr Gaukur Jörundsson,
Mr R. Türmen, judges,Note
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 20 May 1997 and registered on 8 August 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Commission’s partial decision of 21 October 1998,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant is a Netherlands national, born in 1950 and living in Amsterdam (Netherlands). He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 December 1994 the Burgomaster (Burgemeester) of Amsterdam, basing himself on Sections 172 and 175 of the Municipality Act (Gemeentewet) as amended on 1 January 1994, imposed a prohibition order (verwijderingsbevel) on the applicant to the effect that the latter would not be allowed for a period of fourteen days to enter a particular area, i.e. the “Ganzenhoef” area, one of the emergency areas designated by the Burgomaster. The following events, which were referred to in the Burgomaster's decision, led to this decision.
It appeared from police reports that on 9 and 12 September, 3 October, 14 and 16 November 1994 the applicant had either overtly used hard drugs, had utensils for the use of hard drugs in his possession or had hard drugs in his possession in the Ganzenhoef area and that on four of those occasions the applicant had been ordered to leave the area for eight hours.
On 16 November 1994 the applicant had been heard by the police about his conduct and he had been told that he would either have to refrain from acts which disturbed the public order (openbare orde) or have to stay away from the area. The applicant had further been informed that if he committed such acts again in the near future, the Burgomaster would be requested to impose a prohibition order for fourteen days on him. On that occasion the applicant did not wish to state anything as to the reasons for his presence in that area.
On 25 November 1994 the applicant had nevertheless overtly used hard drugs in the Ganzenhoef area. He had once again been ordered to leave the area for eight hours and the police had subsequently requested the Burgomaster to impose a prohibition order for fourteen days on the applicant.
In the opinion of the Burgomaster the applicant would again commit acts disturbing the public order within the near future. In this respect the Burgomaster took account of the kind of conduct involved, i.e. acts seriously disturbing the public order, the repetition and continuity of this conduct, the statement of the applicant, the short period of time within which the acts concerned had been observed and the fact that the applicant had continued his disruptive behaviour despite the eight hour prohibition orders imposed on him and the warning given by the police. Finally, the Burgomaster noted that neither the applicant's home nor his place of work were situated in the area concerned.
On 12 December 1994 the applicant lodged an objection (bezwaarschrift) against the prohibition order with the Burgomaster. He submitted, inter alia, that the Burgomaster had failed to take into account the fact that he was resident in the Ganzenhoef area, that he needed to be present there in person twice per week in order to collect his social security benefits and that he received social counselling there. The applicant stated that the police knew this, but had failed to mention this in the police report on the applicant's hearing on 16 November 1994.
The applicant further submitted that the prohibition order could not be considered as having a legal basis in that the emergency powers granted to the Burgomaster under the Municipality Act were intended for emergency situations. According to the applicant, the legislature had never intended structural nuisance by drug abusers to be considered as creating an emergency situation. Moreover, the applicant's absence from the Ganzenhoef area would not make any difference in this respect since he was only one of many drug abusers in that area. The applicant also complained that the order was contrary to Article 6 of the Convention in that it constituted a sanction and could therefore only be imposed by a judge. He further complained that the order restricted his freedom of movement and was contrary to his right to respect for his private life, family life, home and correspondence.
On 10 January 1995 a hearing took place before an advisory committee. During this hearing the representative of the Burgomaster stated that already on 19 April 1994 a prohibition order for fourteen days had been imposed on the applicant and that on 16 November 1994 the applicant had not wished to make any statement to the police as to the reasons for his presence in the Ganzenhoef area. Despite the previous orders, the applicant had continued his undesirable conduct and on this basis the imposition of a new prohibition order had been sought. The Burgomaster's representative further stated that the address where the applicant had stated that he resided and where he collects his mail and social security benefits was in fact the address of the Streetcornerwork Foundation. It was not possible to reside at that address. This Foundation had a procedure under which social security benefits for persons subject to a prohibition order might be collected by an authorised third party and the applicant could avail himself of that procedure.
On 29 June 1995 the committee advised the Burgomaster to reject the objection and to maintain the prohibition order. It considered, inter alia, having regard to the fact that the applicant had, within a short period of time, regularly committed acts which had disrupted public order and that the prohibition orders for eight hours which had been issued had not prevented him from behaving in that manner, that the imposition of the prohibition order had not been unreasonable. It further found that the order was in conformity with section 172 (3) of the Municipality Act, that therefore it was not necessary to examine the question whether or not the conditions set out in section 175 of the Municipality Act had been fulfilled and that the Burgomaster had not exceeded his competence under the Municipality Act.
It did not agree with the applicant that the impugned measure constituted a penalty as it had been issued for the purpose of maintaining public order. The committee finally found that the interference with the applicant's right to liberty of movement had been justified and that the prohibition order could not be regarded as disproportionate.
By decision of 6 July 1995 the Burgomaster rejected the applicant's objection, adopting as his own the reasoning applied by the advisory committee. The applicant lodged an appeal with the Regional Court (Arrondissementsrechtbank) of Amsterdam.
By judgment of 19 January 1996, following adversarial proceedings in the course of which a hearing was held (on 8 December 1995), the Regional Court declared the applicant's appeal well-founded and quashed the prohibition order.
The Regional Court accepted that the overt use of hard drugs in public places and the presence of a concentration of drug abusers and dealers disrupted public order and acknowledged the necessity to end such nuisance, in particular when this occurred continuously at specific locations in the city. The Regional Court noted that the Burgomaster availed himself of two means to that end, namely prohibition orders of either eight hours or fourteen days. It considered the procedure established as regards the imposition of prohibition orders for a duration of fourteen days and noted that this procedure had not been fully complied with in that the applicant's prohibition order had not been sought by the competent police officer. However, as it was not established that this had harmed the applicant's interests, it did not find that this flaw should result in the quashing of the order. It did, however, find that the order should be quashed on other grounds.
The Regional Court held that, unlike the situation in which an eight hour prohibition order has been imposed, section 172 (3) of the Municipality Act offered no basis for the imposition of a prohibition order for a duration of fourteen days. It held on this point that the competence established by this provision aimed to create a possibility for direct reaction to an expected disturbance of public order and might serve to prohibit someone’s presence for a limited period of time in the area where the disturbance of public order was expected. It held that the eight hour prohibition order was such as to meet this need, but not the fourteen days prohibition order, the latter measure being disproportionate in relation to the expected disruption of public order and thus going beyond what could be considered necessary for maintaining public order.
The Regional Court added that in the present case this was all the more so as the applicant had no permanent place of residence and used the address of the Streetcornerwork Foundation as his postal address. The prohibition order implied that the applicant's freedom of movement was limited for fourteen days in a manner which prevented him from collecting his mail and from receiving his social security benefits. It rejected the argument advanced by the Burgomaster's representative that the police would not undertake any formal action against the applicant for acting contrary to Article 184 of the Criminal Code (Wetboek van Strafrecht), i.e. the offence of failure to comply with an official order (ambtelijk bevel), when collecting his social security benefits at the address of the Streetcornerwork Foundation, holding that the applicant's freedom of movement could not be made dependent on the willingness of the police officer on duty to tolerate intrinsically punishable conduct.
The Regional Court further found that the situation at issue, i.e. nuisance caused by drug abuse, did not constitute a situation within the meaning of section 175 of the Municipality Act and accordingly held that the Burgomaster could not have based the prohibition order on this provision. As it had already found the prohibition order to be incompatible with national law, the Regional Court did not find it necessary to determine whether or not the order was compatible with Article 6 of the Convention.
The Burgomaster filed an appeal against the Regional Court's judgment with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) on 7 February 1996.
In its judgment of 19 December 1996, following adversarial proceedings, the Administrative Law Division quashed the Regional Court's judgment of 19 January 1996 and rejected the applicant's appeal to the Regional Court as ill-founded.
The Administrative Law Division overturned the Regional Court's finding that the Burgomaster was not competent to act on the basis of section 175 of the Municipality Act. It found that the issuance of orders in situations within the meaning of section 175 was not contrary to the right of freedom of movement within the meaning of Article 2 or Protocol No. 4 as this right might be restricted by law for the protection of public order. According to the Administrative Law Division, section 175 of the Municipality Act attributed to the Burgomaster an emergency competence which was only to be used in exceptional situations. Thus a statutory provision has been made for circumstances where normal methods were insufficient for restoring and maintaining public order.
The Administrative Law Division further held that in the instant case normal methods to restore and maintain public order could not be considered to have sufficed and that at the time of the impugned measure there had indeed existed an exceptional situation in that the situation in the Ganzenhoef area was characterised by the presence of a large number of drug abusers and the concomitant restrictions, nuisance, lack of safety and threat to other citizens.
The Administrative Law Division noted that, at the relevant time, there had been no relevant provision in a municipal bye-law or any other adequate legal instrument available, but that, on 26 June 1996, section 2.6 A had been added to the general municipal bye-law (Algemene Plaatselijke Verordening) of Amsterdam, providing for a regulation for prohibition orders in relation to hard drugs. Against this background the Administrative Law Division rejected the argument that the Burgomaster could not have availed himself of the competence given to him by section 175 of the Municipality Act.
The Administrative Law Division further held that no grounds had been established on the basis of which it could be found that the Burgomaster had acted unreasonably in reaching his decision to impose a prohibition order for fourteen days and that such a prohibition order should be considered as no more than a preventive measure aimed at avoiding a continuing disturbance of public order and thus could not be regarded as a “criminal charge” within the meaning of Article 6 of the Convention.
It finally took into consideration that neither the applicant's home nor his place of work were situated in the area concerned and that he has been provided with a possibility to collect his social security benefits from the Streetcornerwork Foundation.
Apart from the proceedings described above, the applicant was arrested and placed in detention on 4 December 1994 for failure to comply with the prohibition order of 2 December 1994. On 20 December 1994, the single-judge chamber (Politierechter) of the Regional Court (Arrondissementsrechtbank) of Amsterdam suspended the applicant's pre-trial detention in order to allow the applicant to be admitted to the Crisis Observation and Detoxification Department of the J. clinic and adjourned the criminal proceedings against the applicant sine die.
By judgment of 22 May 1995, the Magistrate convicted the applicant of having failed to respect a prohibition order on two occasions and sentenced him to four months' imprisonment with deduction of the time spent in pre-trial detention. The applicant appealed to the Court of Appeal (Gerechtshof) of Amsterdam.
In its judgment of 4 February 1997, the Court of Appeal quashed the judgment of 22 May 1995 and convicted the applicant of having failed to respect a prohibition order on one occasion. However, as the applicant had also amassed other convictions which the law required to be taken into account for sentencing purposes, the Court of Appeal was prevented from imposing any sentence as the maximum aggregate penalty had already been attained.
The applicant's subsequent appeal in cassation with the Supreme Court (Hoge Raad) was rejected on 16 June 1998.
B. Relevant domestic law and practice
Section 172 of the Municipality Act provides as follows:
“1. De burgemeester is belast met de handhaving van de openbare orde.
2. De burgemeester is bevoegd overtredingen van wettelijke voorschriften die betrekking hebben op de openbare orde, te beletten of te beëindigen. Hij bedient zich daarbij van de onder zijn gezag staande politie.
3. De burgemeester is bevoegd bij verstoring van de openbare orde of bij ernstige vrees voor het ontstaan daarvan, de bevelen tegeven die noodzakelijk te achten zijn voor de handhaving van de openbare orde.”
“1. The Burgomaster is responsible for maintaining public order.
2. The Burgomaster is empowered to prevent or to end offences against statutory provisions relating to public order. In doing so he avails himself of the police under his authority.
3. In case of disruption of public order or a well-founded fear for the development thereof, the Burgomaster is empowered to issue orders deemed necessary for the maintenance of public order.”
Section 175 of the Municipality Act reads:
“1. In geval van oproerige beweging, van andere ernstige wanordelijkheden of van rampen of zware ongevallen, dan wel van ernstige vrees voor het ontstaan daarvan, is de burgemeester bevoegd alle bevelen te geven die hij ter handhaving van de openbare orde of ter beperking van gevaar nodig acht. Daarbij kan van andere dan bij de Grondwet gestelde voorschriften worden afgeweken.
2. De burgemeester laat tot maatregelen van geweld niet overgaan dan na het doen van de nodige waarschuwing.”
“1. In case of a riotous movement, of other serious disorders or of calamities, as well as in case of a well-founded fear of the development thereof, the Burgomaster is empowered to issue all orders which he deems necessary for the maintenance of public order or the limitation of general danger. In doing so he may deviate from rules other than those of the Constitution.
2. The Burgomaster shall not have recourse to measures of violence without having issued the necessary warning.”
Article 184 of the Criminal Code (Wetboek van Strafrecht), insofar as relevant, reads:
“1. Hij die opzettelijk niet voldoet aan een bevel of een vordering, krachtens wettelijk voorschrift gedaan door een ambtenaar met de uitoefening van enig toezicht belast of door een ambtenaar belast met of bevoegd verklaard tot het opsporen of onderzoeken van strafbare feiten, alsmede hij die opzettelijk enige handeling, door een van die ambtenaren ondernomen ter uitvoering van enig wettelijk voorschrift, belet, belemmert of verijdelt, wordt gestraft met gevangenisstraf van ten hoogste drie maanden of geldboete van de tweede categorie.
4. Indien tijdens het plegen van het misdrijf nog geen twee jaren zijn verlopen sedert een vroegere veroordeling van de schuldige wegens gelijk misdrijf onherroepelijk is geworden, kan de gevangenisstraf met een derde worden verhoogd.”
“1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a second-category fine.
4. If the offender commits the indictable offence within two years of a previous conviction for such an offence having become final, the term of imprisonment may be increased by a third.”
By letter of 4 July 1983 the Burgomaster of Amsterdam informed the Chief Superintendent (Hoofdcommissaris) of the Amsterdam police that, in view of the situation in the city centre, the Chief Superintendent and police officers acting on the Burgomaster's behalf would be able to order people to leave a particular area within the city centre and not to return to it for eight hours. The Burgomaster considered that the designated city centre area continually attracted persons addicted to, and dealers in, hard drugs. The activities carried out by them, insofar as they related to drugs, disrupted public order, caused considerable nuisance and constituted an incessant threat to public life. For this reason the Burgomaster found that the situation existing in the area constituted a exceptional situation within the meaning of section 219 of the former Municipality Act.
The Burgomaster extended the area of the city centre where these orders could be issued by letter of 25 July 1988. Subsequently, by letter of 8 March 1989, the Burgomaster also empowered the Chief Superintendent and his officers to order people to leave the designated city centre area for fourteen days. By letter of 17 October 1989 the Burgomaster changed this instruction replacing the discretion of the police officers to issue eight-hour prohibition orders by a strict order to do so in specified circumstances. The Burgomaster’s instructions were further changed by letter of 13 November 1989 pursuant to which prohibition orders for fourteen days could no longer be issued by the police on behalf of the Burgomaster but only by the Burgomaster himself.
A prohibition order for fourteen days could be imposed on a person if in the preceding six months five procès-verbaux or other reports had been drawn up by the police concerning acts committed by him which had disturbed the public order such as, inter alia:
- the possession and use of addictive substances appearing in Annex 1 to the Opium Act (Opiumwet; i.e. hard drugs) on the public highway;
- dealing in addictive substances appearing in Annex 1 to the Opium Act on the public highway;
- overt possession of knives or other banned objects insofar as this constituted a criminal offence pursuant to the general municipal bye-law or the Arms and Ammunition Act (Wet Wapens en Munitie);
- committing the offence of Article 184 of the Criminal Code where the order that had not complied with was a prohibition order for eight hours;
- acts of violence, thefts from cars on or along the public highway, overt selling on of stolen goods on or along the public highway, insofar as there was a connection between these offences and hard drugs.
On the occasion of a fourth procès-verbal being drawn up against him, the person concerned would be heard by a police sergeant about his disruptive behaviour and the reason for his (continued) presence in the emergency area. The police sergeant would issue a warning to the effect that if in the near future the person concerned again disrupted public order, the police would request the Burgomaster to impose a prohibition order for fourteen days.
In a judgment of 4 May 1990, Nederlandse Jurisprudentie (Netherlands Law Reports) 1990, no. 680, which related to a criminal prosecution under Article 184 of the Criminal Code for failure to comply with an eight-hour prohibition order, the Amsterdam Court of Appeal found that section 219 of the Municipality Act did not entitle the Burgomaster to delegate to individual police officers the discretion to decide whether or not to impose such orders on his behalf.
In a judgment of 23 April 1996, Nederlandse Jurisprudentie 1996, no. 514, which related to a criminal prosecution under Article 184 of the Criminal Code for failure to comply with an eight-hour prohibition order, the Supreme Court (Hoge Raad) accepted that the Burgomaster’s powers under section 219 of the former Municipality Act (for present purposes, the predecessor to sections 172 and 175 of the present Municipality Act) were intended only for exceptional situations. It held, however, that the mere fact that two and a half years had passed since the Burgomaster had declared an emergency situation – the case related to the Burgomaster’s instruction of 17 October 1989 – was not sufficient per se to justify the conclusion that an exceptional situation no longer existed. It also held, in the same judgment, that Article 6 of the Convention did not apply to eight-hour prohibition orders because such orders were not given by way of penal sanction but were in the nature of a measure aimed at preserving public order. Nor did such orders violate Article 2 of the Fourth Protocol, since they were “in accordance with law” and “necessary in a democratic society” for “the maintenance of ordre public”. The judgment of the Supreme Court left in force a judgment of the Amsterdam Court of Appeal sentencing the defendant in that case to two weeks’ imprisonment.
In the Netherlands, a Burgomaster of a town or city is appointed by the Queen (section 61 of the Municipality Act). Municipal regulations, such as general municipal bye-laws, are adopted by the Municipal Council (section 147 of the Municipality Act) which is elected by those inhabitants of the town or city who are eligible to vote in elections for the Lower House of Parliament (Article 129 of the Constitution).
The applicant complains under Article 2 of Protocol No. 4 and Article 8 of the Convention of an unjustified interference with his rights to liberty of movement and respect for his private life in particular given that he was prohibited from finding himself in an area, where he resides, where he receives his mail, where he receives payment of his social security benefits and where he receives social assistance. He submits that this interference was not in accordance with the law since, firstly, the letters and instructions from the Burgomaster to the Chief Superintendent of police had not been published. Secondly, by 1994 the situation characterised by the Burgomaster as exceptional had become structural. As a result, the relevant Sections of the Municipality Act can no longer be considered applicable to the situation concerned. It could similarly not be said that the imposition of prohibition orders pursued the aim of the maintenance of public order.
He further complains under Article 6 of the Convention that the prohibition order constitutes a criminal sanction which has been imposed on him without a trial having taken place before a tribunal.
Article 2 of Protocol No. 4 provides as follows:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”
Article 8 of the Convention provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 6 of the Convention, in so far as it is relevant, provides as follows:
“1. In the determination of … of any criminal charge against him, everyone is entitled to a … hearing within a reasonable time ...
1. The Government do not dispute that there has been an “interference” with the applicant’s rights under Article 2 of Protocol No. 4 or of Article 8 of the Convention as the case may be. They disagree with the applicant’s position that this interference was not “in accordance with law/in accordance with the law”.
In the Government’s submission, the Burgomaster’s powers derived from sections 172 and 175 of the Municipalities Act. This was also accepted, in the present case and in others, by theAdministrative Jurisdiction Division of the Council of State. In support of this submission the Government cited the judgment of the Supreme Court mentioned above (see the “Relevant domestic law” section) and several interim decisions of the President of the Administrative Litigation Division (Afdeling rechtspraak) of the Council of State suspending orders given by the Burgomaster of Amsterdam under section 219 of the (former) Municipality Act pending the outcome of proceedings on the merits. To that extent, in the Government’s view, there existed a basis in domestic law.
As to the foreseeability requirement, they admitted that the Burgomaster’s instructions to the police had not been made public. However, they argued that their content and purport were well enough known to the sections of the public likely to be affected by them. Moreover, the applicant must reasonably have been aware of the possible consequences if he continued to disrupt public order by his behaviour. He had been warned by the police, both orally and in writing, that he could expect a fourteen-day prohibition order if he displayed such behaviour again. The warning had been issued to him in writing.
For the remainder, the interference in question had served the “legitimate aims” of maintaining public order, but also the interests of public safety, the prevention of crime and the protection of the rights and freedoms of others. Given the dire situation in the affected parts of Amsterdam, there was obviously a “pressing social need”; and the measure in question, being limited in both time and extent, had not been disproportionate. The Government further noted in this connection that before imposing the fourteen-day prohibition order on the applicant the Burgomaster had had investigations made to ensure that the applicant was neither resident or working in the area concerned, that it was not established that the applicant had relatives living there, and that the applicant was allowed to enter the area to visit the Streetcornerwork Foundation and pick up his social-security benefits.
The applicant submitted in reply that the nuisance caused by drug abusers in the designated areas of Amsterdam was structural in nature, and that the Burgomaster had bypassed the law by arrogating unto himself the structural authority to limit individuals’ freedom of movement. This he had done by abusing a power to give orders which was solely intended to enable him to deal with transient public-order problems. Alternatives were available, such as an “emergency bye-law”, which was subject to ratification by the Municipal Council and was therefore, by its nature, a “law”.
The applicant described the Burgomaster’s instructions to the police as “secret”, being known only to the police. Even if it were admitted that the applicant had been warned by the police of the likely consequences of his disruptions of public order, if repeated, that would mean that the applicant was expected to regulate his conduct according to what he was told by the police: the applicable rules were not, and could not be, known by him.
Nor, in the applicant’s contention, could it be said that the interference in question had had a “legitimate aim” and been “necessary in a democratic society”. Whether or not this was the case could be decided only by a legislative body, in particular the Municipal Council. The Burgomaster, however, had deliberately avoided involving the local council in the matter, thus bypassing proper democratic procedures.
With regard, in particular, to the Government’s argument that the applicant was allowed to enter the area in question in order to visit the Streetcornerwork Foundation and receive his social security benefits, the applicant stated that this was nowhere set out in writing, so that he nonetheless continued to run the risk of arrest and prosecution. He therefore had no legal certainty in this respect.
Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaints under Article 2 of Protocol No. 4 and Article 8 of the Convention raise complex questions of fact and law which require an examination on the merits. They cannot, therefore, be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 1 of the Convention.
2. The Government argued that the prohibition order imposed on the applicant did not involve a “criminal charge”. Consequently, Article 6 of the Convention was not applicable. They referred to the criteria developed by the Court in its case-law, particularly the Engel and Others v. the Netherlands judgment of 8 June 1976 (Series A no. 22) and the Öztürk v. Germany judgment of 21 February 1984 (Series A no. 73).
As to the first criterion, the classification of the offending behaviour in national law, they stated that the prohibition order in question was part of administrative procedure. This followed from the legal basis, namely sections172 and 175 of the Municipality Act and the Burgomaster’s instructions given thereunder, and from the fact that objections in such cases were dealt with in administrative proceedings without involvement of the prosecutor. They also observed in this connection that the applicant’s prosecution at a later stage, for disobeying the prohibition order, clearly did involve a “criminal charge”.
As to the second criterion, the nature of the offence, the Government considered that the prohibition order imposed on the applicant was to be seen as a measure designed to prevent public order disturbances. It was of a preventive, not a punitive nature.
As to the third criterion, the degree of severity of the contested measure, the Government expressed the opinion that it was so limited in terms of duration and the area concerned that it could not be regarded as punitive. Moreover, it had not been imposed before the Burgomaster had ascertained that it would not cause disproportionate harm to the applicant’s interests.
In the alternative, the Government considered that the applicant had had available to him an array of remedies satisfying the requirements of Article 6, namely – after lodging an objection with the Burgomaster – appeals to the Regional Court and the Administrative Jurisdiction Division of the Council of State.
The applicant conceded that the prohibition order imposed on him was not provided for by any provision of the criminal law. On the other hand, the behaviour which was liable to give rise to such an order was defined in terms of offences which themselves were part of criminal law. It was further significant that the Burgomaster, as head of the local police force, had the power to impose such orders, that the legal framework had been worked out by the Burgomaster together with the public prosecution service and the police.
Moreover, a fourteen-day prohibition order entailed a severe curtailment of the applicant’s freedom of movement. It was imposed after the applicant had committed certain proscribed acts. Its geographic extent and duration were the same in all cases and were in no way related to the personal circumstances of the offender.
Furthermore, the fourteen-day prohibition order could not be challenged before it took effect; in most cases, if an objection was lodged, it was only considered by the Burgomaster long after the order had expired.
The Court agrees with the Government that the formal classification under Netherlands law is not such as to bring prohibition orders such as that imposed on the applicant within the sphere of criminal law. It finds support for this view in the judgment of the Netherlands Supreme Court of 23 April 1996, Nederlandse Jurisprudentie (Netherlands Law Reports) 1996, no. 514. Although strictly it concerns only an eight-hour prohibition order, such orders have a legal basis which is virtually identical to that of fourteen-aday prohibition orders. In addition, they serve an identical purpose, namely the maintenance of public order in a specified area of Amsterdam.
The Court is further of the opinion that the purely preventive nature of the measure concerned is not affected by the fact that the applicant’s actions could have led to a criminal prosecution. It is appropriate to draw a parallel to the Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A, where the situation was similar (loc. cit., §§ 16 and 43).
As to the severity of the measure, it is again appropriate to make a comparison with the supervision order imposed on the applicant Raimondo. The latter was required to inform the police before leaving his home, to report to the police on the days indicated to that effect, and not to be absent from his house from 9 p.m. until 7 a.m. unless he had the prior permission of the relevant authorities. In addition, he was required to lodge a security to ensure that he complied with this order (loc. cit., § 13). In the Court’s opinion these constraints were more severe than those imposed on the applicant in the present case.
The above considerations lead the Court to find that the proceedings in question did not involve the “determination” of a “criminal charge” against the applicant. It follows that the applicant’s complaint under Article 6 is inadmissible as being incompatible with the Convention ratione materiae.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaintsNote under Article 2 of Protocol No. 4 and Article 8 of the Convention;
DECLARES INADMISSIBLE the remainder of the application.
Michael O’Boyle Elisabeth Palm
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